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HQ 966841




March 18, 2004

CLA-2: RR:CR:TE 966841 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3020

Port Director
U.S. Customs & Border Protection
40 South Gay Street
Baltimore, Maryland 21202

RE: Decision on Application for Further Review of Protest 1303-03-100281

Dear Port Director:

This is a decision on an Application for Further Review (AFR) of Protest 1303-03-100281, timely filed by Bell Sports DBA Rhode Gear, on October 9, 2003, against your decision as to the classification and liquidation of one entry of “NX Hydration Packs” entered in August 2002. You classified the goods under subheading 6307.90.9889, of the Harmonized Tariff Schedule of the United States (HTSUS), the provision for other made up textile articles, other, with a general column one duty rate of seven percent ad valorem.

Protestant claims that the merchandise should be classified under subheading 3926.90.9880, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other”, with a general column one duty rate of 5.3 percent ad valorem.

Protestant alleges that the liquidated classification is inconsistent with rulings concerning the same or substantially similar merchandise in which CBP determined that certain portable hydration units were classifiable in subheading 3926.90.9880, HTSUS. See New York Ruling Letter (NY) F85417, dated April 7, 2000.

FACTS:

The submitted sample is identified as the “NX Hydration Pack”, item number 2435001001. The pack measures approximately 17 inches in height by 6” in width. It is manufactured from heavy-duty pack cloth fabric of man-made fiber textile materials and has dual padded adjustable shoulder straps. The rear panel is composed of an outer surface of non-absorbent backing material, atop a layer of foam plastic intended to cushion the pack when worn on the back. It has a zippered storage pocket approximately 17 inches in height by 6 inches in width that is designed to contain an easy fill 70 oz. drink bag attached to a clear, flexible drinking hose. The exterior of the pack give access to three pockets, one 13” x 6”, one 6” x 6” and one mesh pocket with hook and loop closure and one loop holder sewn to the front of the mesh pocket. The front exterior panel has an integrated bungee cord with cord lock designed to secure articles during travel. The paperboard sleeve designed to package the pack states that the zippered pockets are to be used to carry food and gear. A photo of the pack on the sleeve shows the pack with a bike pump in the bungee cord and an energy bar and energy drink in the front mesh pocket.

ISSUE:

Whether the “NX Hydration Pack” is properly classified as a backpack or similar container in heading 4202, HTSUS, or as an other article of plastics in heading 3926, HTSUS.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

Heading 3926, HTSUSA, covers “Other articles of plastics and articles of other materials of headings 3901 to 3914.” The EN to heading 3926 indicate that the heading covers articles, not elsewhere specified or included, of plastics. Legal Note 2(ij) to Chapter 39, HTSUSA, excludes “. . . trunks, suitcases, handbags or other containers of heading 4202.”

The terms of the heading 4202 provide for trunks, suitcases, and containers that organize, store, protect and/or carry personal effects, including knapsacks and backpacks. The EN to 4202 states that the heading covers only (emphasis in text) the articles specifically named therein and similar containers, and, that these containers may be rigid or with a rigid foundation or soft and without foundation.

CBP has classified articles similar to the subject samples in both headings 4202 and 3926, HTSUSA, depending upon their carrying capacity and the purpose(s) for which they are designed.

In HQ 961517, dated March 18, 1998, CBP classified such products under heading 4202, HTSUSA. In HQ 961517, we stated:

With respect to [the hydration system], we find that its large pockets and their 220 cubic centimeter capacity, allow the complete article to organize, store, protect and carry a large quantity and variety of items in addition to the bladder - characteristics which override the article’s otherwise prominent hydrating aspect. Due to the significant additional carrying capacity of [this model], we find that the article is classifiable in heading 4202, HTS, as a container similar to a backpack.

In HQ 962655, issued July 7, 2000, we classified in subheading 3926.90.9880, HTSUSA, a composite article consisting of a plastic sports bottle imported with a fitted, textile carrier bag. It was found that the bottle component supplied the article's essential character, permitting the primary function of carrying and dispensing a beverage while the nylon textile bag served the secondary function of conveniently carrying the bottle.

Protestant relies on NY F85417, dated April 7, 2000, in support of its position that the subject “NX hydration pack” should be classified in subheading 3926.90.9880, HTSUSA. Four samples were submitted for consideration in NY F85417. The samples were identified as “HydraSak” hydration units and were composed of a bladder to contain and dispense liquids in a backpack style carrier. Each of the carriers featured small, flat external pockets in addition to the central compartment that held the bladder. Each of the articles was excluded from heading 4202 due to the relatively flat, small size of the external pockets which did not significantly expand the capacity to carry items in addition to the bladder. Three of the samples were classified based on their bladder being of textile in subheading 6307.90.9889, HTSUSA, as other made up articles, other. The remaining sample was classified based on its plastic components in subheading 3926.90.9880, HTSUSA.

The “NX Hydration Pack” includes textile components which are significantly more important in the overall function of the article than the carrier bag of HQ 962655 or NY F85417. The “NX Hydration Pack” consists of a textile carrier designed to organize, store, protect and carry various personal effects in addition to the plastic components. The straps are essential for the article’s use during exercise and the textile pouches and compartments the carrier incorporates provide the necessary organization and storage for tools, food, clothing and other essentials.

CBP finds that the essential character of the “NX Hydration Pack” is imparted by the textile bag portion of the product. Although consumers likely find these products attractive because they combine the features of a water container and a backpack, we find that its hydrating features compliment its design and that consumers also use the “NX Hydration Pack” as a means to organize, store, protect and carry an array of personal effects. If the consumer were interested in simply purchasing a product for hydration, then a water bottle or canteen might suffice. However, to sports enthusiasts, mobility is key and the backpack straps allow one to wear the NX Hydration Pack while engaging in strenuous physical activities. The unique design and placement of the product’s compartments allow the consumer to combine hydration while exercising with the convenience of transporting various items also needed while engaging in a sport.

HOLDING:

The article identified as the “NX Hydration Pack” is classified in subheading 4202.92.3020, HTSUSA, which provides for “Trunks, suitcases, vanity-cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toilet bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder boxes, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other, Other: Of man-made fibers: Backpacks.” The applicable general column one duty rate in 2002 is 18.1 percent ad valorem. The textile category number is 670. There are no applicable quota/visa requirements for products of World Trade Organization (WTO) member-countries. The textile category number above applies to merchandise produced in non-WTO member-countries.

Since the rate of duty under the classification indicated above is more than the liquidated rate, the protest should be DENIED.

In accordance with Section IV of the Customs Protest/Petition Processing Handbook, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. No later than sixty days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.

The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest the importer check, close to the time of shipment, the Textile Status Report for Absolute Quotas, available on the CBP website at www.cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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